Plaintiff was elected senator of Silver Bow county on November 8, 1938, for a four-year term commencing on January 2, 1939. On February 17, 1939, he filed as a candidate for mayor of the city of Butte, but waged an unsuccessful campaign. He did not file a resignation as state senator. He brought this action to enjoin defendants from taking the necessary steps to fill the vacancy supposed to exist because of the provisions of Chapter 116, Laws of 1937, and sought a declaratory judgment declaring the meaning, scope and application of that Chapter.
Defendants' demurrer to the complaint was overruled; they declined to answer. Judgment was entered declaring that Chapter 116 is unconstitutional and of no force or effect, that plaintiff is still the state senator from Silver Bow county and has the right at the next election to become a candidate for any elective office under the laws of Montana for which he is legally qualified, and that he need not resign from his present office to become such candidate, and that, if he does become such candidate, there will be no vacancy in the office of state senator ipso facto. Defendants have appealed from the judgment.
Section 1 of Chapter 116 of the Laws of 1937 provides, in substance, that whenever any person holding any office under
the laws of the state, the term of which is longer than two years, shall become a candidate for election to any elective office, other than for reelection to the office held by him, he shall resign the office held by him, and if he fails to do so the office shall become vacant and unoccupied ipso facto. Section 2 provides for filling such vacancies. Section 3 provides: "This Act shall not apply to any office, position or place, appointive or elective, the incumbent of which is prohibited by law (a) from succeeding himself in said office, position or place, or (b) the incumbent of which is prohibited by law from enjoying more than two (2) successive terms in said office, position or place, or (c) to any office, position or place for which there is no salary, per diem, fees or emoluments prescribed or accruing by law, or (d) to the office of state representative, or to the office of state senator, unless the candidacy of the incumbent for a different office may result in a vacancy in the office of state senator in which case the provisions of this Act shall apply, or (e) to the incumbent of any office whose term of office expires within (70) seventy days after the ensuing general election."
Section 4 of the Act provides: "This act shall be construed as a condition subsequent to the tenure or holding of any office, appointment, position or place under the State of Montana, as aforesaid; and it shall not be construed as imposing or providing any additional qualifications for office in any case where such qualifications are now prescribed by the constitution of the United States or the constitution of Montana to the exclusion of the prescription of additional qualifications by the legislative assembly."
Section 5 is the usual separability clause to the general effect that invalidity of a part of the statute will not affect the remainder.
The question presented is whether there is now a vacancy in[1] the office of state senator for Silver Bow county. In considering this question we must look first to the object and purpose of the Act and the evil sought to be remedied by it. It is plain that the purpose of Chapter 116 is to encourage the filling
of vacancies by election, rather than by appointment, by reducing the duration of appointments and to discourage a person already holding one office carrying more than a two-year term and the term of which would not expire until more than seventy days after the ensuing general election, from retaining that office while endeavoring to obtain another at such election. The effect of Chapter 116 is to cause a vacancy to exist in time so that it can be filled by election at the same election which causes the vacancy, and making the interim appointment of short duration.
The question arises whether Chapter 116 was intended to apply to a person holding an office the incumbent of which is chosen at the regular general election where he seeks the office of mayor of a city, the election taking place, as it does, not at the general election, but on the first Monday of April (sec. 5003, Rev. Codes).
Section 1 of the Act makes it applicable when the incumbent of[2] an office files as a candidate at any "primary or special or general election." The municipal election provided for in section 5003 is not a primary election. It is not the general election as defined in section 531, Revised Codes; nor is it a special election within the definition of that term in section 532. If it is a special election within the meaning of Chapter 116, and if that Chapter was intended to cover such a situation, it would come in conflict with the Fourteenth Amendment to the federal Constitution, as denying the equal protection of the laws. It would amount to an arbitrary classification. While we realize[3] that some discriminations are for the best interests of society (Heisler v. Thomas Colliery Co., 260 U.S. 245,43 Sup. Ct. 83, 67 L.Ed. 237), and that a classification will not be condemned by the courts unless it precludes the assumption that it was made in the exercise of legislative judgment and discretion (Bank of Miles City v. Custer County, 93 Mont. 291,19 P.2d 885; State v. Safeway Stores, 106 Mont. 182, 76 P.2d 81), yet it is the settled rule that unless there be some reasonable basis for the classification resting upon substantial
distinctions which really make one class different from another, the Act must to that extent fall. (State v. Sunburst RefiningCo., 73 Mont. 68, 235 P. 428.)
We see no reasonable justification for a distinction between the holder of an office with a term of two years, and the holder of one for four or six years that would warrant different treatment when the holder of such an office is a candidate for a municipal office, the election for which takes place in April. Under Chapter 116, if applied to offices sought at a municipal election, as here, the holder of a four or six-year term would be obliged to give up his office to run for a municipal office, whereas the holder of a two-year term would not. As applied to an office filled at the general election, we can see justification for this classification. Without Chapter 116, the incumbent of a two-year term, by running for and accepting a different office filled at the general election held in the last year of his term, causes no vacancy in the term held by him which must be filled by appointment. The office held by him would be filled by the electorate at the regular general election, and this whether he is a candidate for reelection or whether he runs for some other office.
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Plaintiff was elected senator of Silver Bow county on November 8, 1938, for a four-year term commencing on January 2, 1939. On February 17, 1939, he filed as a candidate for mayor of the city of Butte, but waged an unsuccessful campaign. He did not file a resignation as state senator. He brought this action to enjoin defendants from taking the necessary steps to fill the vacancy supposed to exist because of the provisions of Chapter 116, Laws of 1937, and sought a declaratory judgment declaring the meaning, scope and application of that Chapter.
Defendants' demurrer to the complaint was overruled; they declined to answer. Judgment was entered declaring that Chapter 116 is unconstitutional and of no force or effect, that plaintiff is still the state senator from Silver Bow county and has the right at the next election to become a candidate for any elective office under the laws of Montana for which he is legally qualified, and that he need not resign from his present office to become such candidate, and that, if he does become such candidate, there will be no vacancy in the office of state senator ipso facto. Defendants have appealed from the judgment.
Section 1 of Chapter 116 of the Laws of 1937 provides, in substance, that whenever any person holding any office under
the laws of the state, the term of which is longer than two years, shall become a candidate for election to any elective office, other than for reelection to the office held by him, he shall resign the office held by him, and if he fails to do so the office shall become vacant and unoccupied ipso facto. Section 2 provides for filling such vacancies. Section 3 provides: "This Act shall not apply to any office, position or place, appointive or elective, the incumbent of which is prohibited by law (a) from succeeding himself in said office, position or place, or (b) the incumbent of which is prohibited by law from enjoying more than two (2) successive terms in said office, position or place, or (c) to any office, position or place for which there is no salary, per diem, fees or emoluments prescribed or accruing by law, or (d) to the office of state representative, or to the office of state senator, unless the candidacy of the incumbent for a different office may result in a vacancy in the office of state senator in which case the provisions of this Act shall apply, or (e) to the incumbent of any office whose term of office expires within (70) seventy days after the ensuing general election."
Section 4 of the Act provides: "This act shall be construed as a condition subsequent to the tenure or holding of any office, appointment, position or place under the State of Montana, as aforesaid; and it shall not be construed as imposing or providing any additional qualifications for office in any case where such qualifications are now prescribed by the constitution of the United States or the constitution of Montana to the exclusion of the prescription of additional qualifications by the legislative assembly."
Section 5 is the usual separability clause to the general effect that invalidity of a part of the statute will not affect the remainder.
The question presented is whether there is now a vacancy in[1] the office of state senator for Silver Bow county. In considering this question we must look first to the object and purpose of the Act and the evil sought to be remedied by it. It is plain that the purpose of Chapter 116 is to encourage the filling
of vacancies by election, rather than by appointment, by reducing the duration of appointments and to discourage a person already holding one office carrying more than a two-year term and the term of which would not expire until more than seventy days after the ensuing general election, from retaining that office while endeavoring to obtain another at such election. The effect of Chapter 116 is to cause a vacancy to exist in time so that it can be filled by election at the same election which causes the vacancy, and making the interim appointment of short duration.
The question arises whether Chapter 116 was intended to apply to a person holding an office the incumbent of which is chosen at the regular general election where he seeks the office of mayor of a city, the election taking place, as it does, not at the general election, but on the first Monday of April (sec. 5003, Rev. Codes).
Section 1 of the Act makes it applicable when the incumbent of[2] an office files as a candidate at any "primary or special or general election." The municipal election provided for in section 5003 is not a primary election. It is not the general election as defined in section 531, Revised Codes; nor is it a special election within the definition of that term in section 532. If it is a special election within the meaning of Chapter 116, and if that Chapter was intended to cover such a situation, it would come in conflict with the Fourteenth Amendment to the federal Constitution, as denying the equal protection of the laws. It would amount to an arbitrary classification. While we realize[3] that some discriminations are for the best interests of society (Heisler v. Thomas Colliery Co., 260 U.S. 245,43 Sup. Ct. 83, 67 L.Ed. 237), and that a classification will not be condemned by the courts unless it precludes the assumption that it was made in the exercise of legislative judgment and discretion (Bank of Miles City v. Custer County, 93 Mont. 291,19 P.2d 885; State v. Safeway Stores, 106 Mont. 182, 76 P.2d 81), yet it is the settled rule that unless there be some reasonable basis for the classification resting upon substantial
distinctions which really make one class different from another, the Act must to that extent fall. (State v. Sunburst RefiningCo., 73 Mont. 68, 235 P. 428.)
We see no reasonable justification for a distinction between the holder of an office with a term of two years, and the holder of one for four or six years that would warrant different treatment when the holder of such an office is a candidate for a municipal office, the election for which takes place in April. Under Chapter 116, if applied to offices sought at a municipal election, as here, the holder of a four or six-year term would be obliged to give up his office to run for a municipal office, whereas the holder of a two-year term would not. As applied to an office filled at the general election, we can see justification for this classification. Without Chapter 116, the incumbent of a two-year term, by running for and accepting a different office filled at the general election held in the last year of his term, causes no vacancy in the term held by him which must be filled by appointment. The office held by him would be filled by the electorate at the regular general election, and this whether he is a candidate for reelection or whether he runs for some other office. On the other hand, before the passage of Chapter 116, the holder of a four or six-year term filled at the general election who became a candidate for another office during the second year of his term, or during the fourth year in the case of a six-year term, would cause a vacancy in the office held by him which would have to be filled by appointment until the next general election, which appointment would continue for approximately two years. Chapter 116 requires such a candidate to resign in time so that the vacancy would be filled at the same election which gives rise to the vacancy, making the appointment continue for but a few months.
When the object and purpose of the Act is considered, we can see a reasonable justification for a different classification between the holder of a two-year term as against the holder of a four or six-year term, when the incumbent seeks an office which is filled at the regular general election. We can see no justification, however, for such a classification when the incumbent of
an office regularly filled at the general election seeks another office which is filled at the municipal election, as here. Hence, Chapter 116, so far as it attempts to declare a vacancy in an office regularly expiring on the first Monday in January because the incumbent seeks an office at a municipal election held in April, is unconstitutional and void as being in conflict with the equal protection clause of the federal Constitution.
It follows, therefore, that the plaintiff is still the senator from Silver Bow county.
The fact that the Act may be unconstitutional in part does not[4] prevent us from upholding it in other respects. (Dunn v.City of Great Falls, 13 Mont. 58, 31 P. 1017; State ex rel.Bray v. Long, 21 Mont. 26, 52 P. 645.) Section 5 of the Act in effect declares that if part of the Act is found to be invalid, such finding shall not affect the remainder of the Act.
As above stated, we are asked to render a decree under our[5] Uniform Declaratory Judgment Act (secs. 9835.1 et seq., Rev. Codes), declaring plaintiff's right to become a candidate for some other office. This brings up the question whether the Act applies to a state senator at all.
As above noted, section 3 of the Act enumerates certain exceptions and takes certain offices without the provisions of the Act. That section provides in part: "This Act shall not apply * * * (d) to the office of state representative, or to the office of state senator, unless the candidacy of the incumbent for adifferent office may result in a vacancy in the office of statesenator in which case the provisions of this Act shall apply."
Obviously, the Act does not apply to the office of state representative because his term of office is not longer than two years. Therefore section 1 of the Act exempts that office regardless of section 3. When the original bill was introduced it did not contain the italicized portion of section 3, subdivision (d). That was added by way of amendment. It is plain, therefore, that the Act does apply to a state senator if he becomes a candidate for a different office which may result in a vacancy in the office of state senator.
Section 7, Article V of our state Constitution provides: "No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under the state, and no member of congress, or other person holding an office (except notary public, or in the militia) under the United States or this state, shall be a member of either house during his continuance in office." It is difficult to conceive of any office the incumbent of which is chosen at a general election which, if accepted by one holding the office of state senator, would not cause a vacancy in the senatorship under this section of the Constitution. The active candidacy of plaintiff for another office would carry the implication that, if elected to the office, he would accept it. He is required to so state when he files for the office (sec. 641, Rev. Codes). Hence we conclude that his candidacy for another office, the incumbent of which is chosen at the general election, may result in a vacancy in the office of state senator within the meaning of section 3 of the Act. That being so, Chapter 116 has application, and the exception contained in section 3 of the Act does not relieve plaintiff of the consequences provided for in the Act, should he become a candidate at a general election for an office within the prohibition contained in section 7, Article V of our Constitution.
The next question that suggests itself is whether Chapter 116[6] conflicts with section 11, Article IX of the Montana Constitution, reading: "Any person qualified to vote at general elections and for state officers in this State shall be eligible to any office therein except as otherwise provided in this constitution, and subject to such additional qualifications as may be prescribed by the legislative assembly for city offices and offices hereafter created."
Section 4 of Chapter 116 expressly states that the Act is not to be considered as adding additional qualifications for eligibility to public office. This legislative declaration is in accordance with the facts. The requirement that the holder of a public office must tender his resignation upon becoming a candidate for another office, or that his filing for another office would work a resignation ipso facto, does not prescribe additional qualifications for
the office. To be eligible means, "Fitted or qualified to be chosen or elected." (Webster's New International Dictionary.) A person may possess the requisite qualifications or may be eligible to many different offices. The legal requirement, however, that he may not hold more than one at a time does not affect his eligibility to hold them all. On the other hand, the requirement that an office held by one who becomes a candidate for another becomes vacated goes not to his eligibility to hold either office. He is still qualified in the legal sense to hold either. Chapter 116 is simply a limitation upon the right to retain the office already held when seeking another. It is not a limitation upon the right to seek another office. The incumbent of an office has the choice under the statute to retain it unmolested, or give it up and seek another.
Plaintiff contends that Chapter 116 has the effect of[7, 8] shortening the term of office, and therefore runs counter to section 2, Article V of the Constitution, which fixes the term of state senator at four years. The Chapter does not purport to shorten the term of office. The term of office remains as before. The right to hold the office is alone affected. That right is affected only by the voluntary act of the incumbent of the office. Hence Chapter 116, instead of shortening the term of an incumbent, endeavors to dissuade him from shortening his term by his own act of seeking a different office. It should be noted, too, that Chapter 116 was in effect at the time plaintiff was elected to the office of state senator, and hence, when he accepted the office he took it subject to existing laws dealing with the question of its abandonment or forfeiture.
Plaintiff contends that, since the Constitution provides for[9] the impeachment of certain officers for certain causes (sec. 17, Art. V), it is not proper for the legislature to add certain other grounds for removal. The rule is as contended for by plaintiff. (22 R.C.L. 563.) Chapter 116 was and is not a measure adding causes for removal of public officers. It simply provides one method by which a public officer may voluntarily abandon his office.
We have already held that the acceptance of an incompatible office by one already holding office operates as a resignation of the first. (State ex rel. Klick v. Wittmer, 50 Mont. 22,144 P. 648.) Chapter 116 simply extends the rule of resignation or abandonment of an office to those who become candidates for office when they already hold one office, the term of which exceeds two years and does not expire within seventy days after the ensuing general election. The situation is similar to that where an officer leaves the state or changes his residence from the territorial jurisdiction of the office. In such a situation he is held to have abandoned his office. (22 R.C.L. 560.) We know of no constitutional provision prohibiting the legislature from declaring that the mere filing for a second office by the holder of one office, under circumstances covered by. Chapter 116 operates as an abandonment of the first.
The contention is made that the act of filing for office is in itself a legal and innocent act, and that the legislature cannot declare it a ground or cause for forfeiture or abandonment of an office already held. As above noted, there are reasons for the enactment of the law sufficient to have impelled affirmative action by the legislature. We cannot pronounce it as arbitrary and unwarranted as applied to offices filled at the general election. The legislation does not appear to be arbitrary and capricious. We cannot say that it is not a reasonable method of treatment of what the legislature was warranted in concluding was an evil. There is some basis, as above pointed out, for different treatment of different offices as made by Chapter 116, when applied to offices filled at the general elections. We see no reason for condemning Chapter 116 on any other ground than that hereinabove set out.
In considering the question of the constitutionality of the[10, 11] statute we keep in mind the oft-repeated rule that it will be presumed valid and we will not condemn it unless it is shown beyond a reasonable doubt to be in conflict with some constitutional provisions. We also keep in mind that, unlike the Constitution of the United States which is a grant of power, ours is a limitation of power, and the legislature of the state
has the power to do as it pleases, save and except as limited expressly or by necessary implication by some constitutional provision.
Hence it follows that plaintiff may not become a candidate in 1940 for an office to be filled at the general election in 1940 without such candidacy working a resignation or abandonment of his office of state senator.
The judgment appealed from is affirmed so far as it holds that plaintiff is still the senator from Silver Bow county, and reversed in other respects.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS and ARNOLD concur.